In school choice circles, a lot of people don’t much care for actor Matt Damon, at least his education politics. (I’m not sure where they stand on The Bourne Identity or Stuck on You.) Damon—son of education professor Nancy Carlsson-Paige—has been a vocal advocate for government schooling, and is the narrator of the documentary Backpack Full of Cash, which you might recall is the film those outraged over Andrew Coulson’s School Inc. say PBS must show to balance out perspectives. But here’s the thing: Damon sends his own kids to private school!
I am supposed to be outraged by the apparent hypocrisy, but I don’t think Damon’s selection falls under that heading. Damon and many progressives love public schooling but don’t like what it has become, especially under the standards-and-testing tidal wave of No Child Left Behind, and the only somewhat less inundating Every Student Succeeds Act. They don’t care for the reduction of education to basically a standardized test score. As Damon, who attended progressive public schools in Cambridge, MA, has said, “I pay for a private education and I’m trying to get the one that most matches the public education that I had, but that kind of progressive education no longer exists in the public system. It’s unfair.”
No doubt lots of people—choice fans and detractors alike—who want education to be more than a score sympathize with Damon’s frustration. The problem is that Damon champions exactly the wrong system to get sustainable change. By its nature, public schooling, if not doomed to reduction to simple metrics, is in constant, near-death peril of it.
When people can’t vote with their feet—which is very tough to do in a system in which where you go to school depends on where you can afford a home—their only hope to make schools do what they want is government action. But government is controlled by politics, which is itself driven by soundbites. And what is ideal for a soundbite on whether schools are “working”? Why test scores, of course! “The scores are up,” or “the scores are down,” or “25 percent of the kids are proficient,” and so on.
The key to escaping such peril is not hoping that nick-of-time, death-defying, Jason Bourne-esque political miracles will constantly save us, but basing education in freedom. Attach cash to students—via “backpacks,” if you must—give educators autonomy to teach and run schools as they see fit, and ground accountability in educators providing schools to which parents willingly entrust those backpack-bearing kids.
Of course, there is much more that is problematic about government education than just simplistic standardization. Far more deeply, if it is “unfair” that Damon can’t find the progressive schools he wants in the public system, it also unfair that many religious people—who by law cannot get the education they want in public schools—or Mexican Americans, or countless other people are also unable to access the education they want. Thankfully, the key to getting fairness for them is the same one to getting fairness for Damon: school choice.
Don’t blame Matt Damon for his choices. Blame the choice-killing system he defends.
I was wrong. When the Every Student Succeeds Act passed in late 2015, I identified two ambiguities I thought were most ripe for exploitation to keep the federal boot hovering over public schools: the requirement that states have “challenging” curricular standards and that standardized tests be given “much greater” weight in accountability systems than non-academic measures.
Certainly, DC may still seize upon these words to extend control. But according to a Friday New York Times report, it is the law’s call for “ambitious” student performance goals—a term not defined in statute—that the Trump administration, which I thought would be highly deferential to states (wrong again!), is citing to reject state plans:
In the department’s letter to Delaware—which incited the most outrage from conservative observers—[Acting Assistant Secretary for Elementary and Secondary Education Jason] Botel took aim at the state’s plan to halve the number of students not meeting proficiency rates in the next decade. Such a goal would have resulted in only one-half to two thirds of some groups of students achieving proficiency, he noted.
The department deemed those long-term goals, as well as those for English-language learners, not ambitious, and directed the state to revise its plans to make them more so.
And so we remain pretty much where we were under the Obama administration in education, and where we are with every law that leaves it to regulatory agencies to fill in the meaning of crucial terms: with states, localities, and the people at the mercy of bureaucrats and secretaries. Government increasingly of men and not laws.
Alas, this bureaucratically dictatorial state of affairs is okay with some people in DC. In an exchange this weekend, a former Obama administration spokesman lauded the regulatory process as a “transparent” and “consistent” way to “fill in the blanks left by the law”:
Really? I sure can't see how the regulatory process is “transparent” in any meaningful sense. Here is the web page to follow the ESSA regulatory process, and here is the “Notice of Final Regulation” for just one part of the ESSA. Read it all over. Now imagine every parent—with a full-time job, soccer practices to get the kids to, maybe even a desire for some leisure time—trying to read and influence every regulation for ESSA.
Done imagining? The painful reality, of course, is that making law by regulation is even more beyond the ability of an average American to follow and influence than the writing of actual laws. The ESSA itself is almost 400 single-spaced pages long.
Loads of atrocious problems are at work here—no apparent concern for whether the governed can know and understand the laws governing them; legislators sloughing off their responsibilities to bureaucrats—but underlying it all has been widespread disregard for the Constitution and its clear delegation of only specific, enumerated powers to the federal government, none of which mention education.
I was wrong about the specific opening by which the ESSA might be used to maintain federal control over the nation’s public schools. But in stating that federal control is itself unconstitutional, and rule by bureaucrats especially egregious, I remain clearly in the right.
Unless something unexpected happens, tomorrow the United States Senate will vote on Betsy DeVos to be the next U.S. Secretary of Education. And if you are a Democrat sweating through nightmares over what a Trump administration will do to education, you should be pretty comfy with what DeVos has said she’d like to see happen under her watch. As she stated repeatedly in her confirmation hearing, she would not use federal power—and certainly not secretarial power—to impose anything, including school choice, on unwilling states and districts.
But isn’t the vote expected to be as close as last night’s Super Bowl at the end of regulation, with all Dems voting against DeVos and Vice President Mike Pence delivering the final, overtime vote for her? Yup.
You see, over the decades, Democrats, with copious help from Republicans, have tried to make the U.S. Department of Education what it was not originally intended to be, and what with absolute certainty it cannot constitutionally be: a national school board. This vision was exposed in a comment by Senator Patty Murray (D-WA), ranking member of the Health, Education, Labor and Pensions committee, when she warned all who were suffering through the festival of misinformation and grandstanding that was DeVos’s confirmation hearing, that if approved DeVos would “oversee the education of all of our kids.”
This did not elicit the manufactured giddiness that met DeVos’s suggestion that a school with a grizzly fence might have a gun, and that such decisions should be left to states and communities who know their needs better than Washington. But Murray really ought to know that the Constitution and several laws give the feds no authority to “oversee” American education. Moreover, she had only about a year earlier voted for a law—the Every Student Succeeds Act—intended to cage the education secretary after the Obama administration had employed the position to illegally micromanage American education.
Sen. Murray was, though, soon outdone in her hyperbole. Senate Minority Leader Chuck Schumer (D-NY) took his rightful position in the front of the overstatement pack, declaring that DeVos “would single-handedly decimate our public education system if she were confirmed.”
How, exactly, would she do that?
Some have argued that the apocalyptic scenario Schumer invoked was inconceivable because Washington supplies less than 10 percent all K-12 funding. That’s a dubious conclusion: Washington has called lots of shots with that level of funding because while it may look small in percentage terms, try being the state representative who says “I voted to turn down $500 million federal dollars—your tax dollars, dear constituents—so we could keep control.” $500 million looks like a lot of money, which is why, though some threatened, no state ever just abandoned No Child Left Behind.
What Dems appear to fear most is school choice, in particular private choice that enables people to attend truly independent schools that make their own decisions on everything from staffing to curricula. But here’s why the decimation accusation is nonsensical. First, DeVos said that she would not attempt to expand choice unilaterally, but through Congress, where laws are supposed to be made. Suppose, though, somehow the Trump administration on its own was able to make good on its promise to furnish $20 billion for choice, and it was all directed to private rather than charter or traditional public schools? Divide $20 billion by the roughly 50 million kids in public elementary and secondary schools and you get a voucher of $400 per student. Not nothing, but far from enough to move many kids to private schools.
Of course, giving students real choice—but not through Washington—is what we should want, and that includes for children with disabilities. On that front, the attack on DeVos has been that she somehow did not know about the Individuals with Disabilities Education Act. But there was no meaningful indication of that. DeVos said that governmental decisions about students with disabilities are better made at state and local levels, and the IDEA does not disagree: it only applies when federal dollars are involved. More important, choice, such as through Florida’s McKay scholarship program, empowers families to meaningfully advocate for themselves by giving them control over education funds, rather than forcing them into bureaucratic and legal battles that favor the well-to-do. And it does not make sense to subject to IDEA’s rules any private school a family might choose. Having to attract and keep business is the very real, immediate accountability that such a school faces, which may be why McKay is so darn popular with families who use it.
If Democrats fear what a Trump administration might try in education, they ought to be encouraged by Betsy DeVos, who made one thing clear in her confirmation hearing: she does not think she should be calling the shots. But the Dems may fear Washington losing power even more than Trump, though they tremble at the thought of chickens coming home to roost.
Think the end of the No Child Left Behind Act means the end of federal micromanagement? You may have to think again.
As I’ve laid out before, the Every Student Succeeds Act (ESSA) has several ambiguities that seem to keep the door open for continued federal control over state standards, tests, and accountability mechanisms, even as the law has some provisions that seem to prohibit federal intervention. What, for instance, constitutes “challenging” state standards, and who determines that? Or who decides what the right mix of academic and non-academic factors is in school accountability schemes? It certainly seems that because this is federal law, and it includes required federal approval of state plans, there will be federal control.
A report on comments from numerous interest and advocacy groups as the U.S. Department of Education prepares to write ESSA regulations – frankly, where law is really made – only bolsters the fear of continued federal domination. While some groups are certainly calling for a light federal touch, others clearly want continued force. As the Connecticut Coalition for Achievement Now – hardly just a player in the Nutmeg State – wrote:
As you establish rules and regulations around the ESSA, we urge you to maintain challenging and high standards for all students, ensure high-quality, valid and reliable annual statewide assessments, and implement comprehensive and robust school and district accountability and performance systems that help identify and improve our highest need schools and districts.
Sound like a light federal touch? Not to me, either.
Thankfully, rules and regs haven’t been written yet, and there is still time to address what appear to be very real threats of continued federal control both specifically in the law, and ultimately in regulation. And address them we shall on February 16, when Cato will host a debate between experts who see the ESSA as returning power to states and districts, and those who see that as a very uncertain proposition. Or maybe you think the law goes too far removing influence from DC. Well we’ll tackle that, too, especially if you join us – either in-person or online, and using #FedsLeaveEd on Twitter – and ask our panel about it.
Does the ESSA really relinquish federal power? That remains an open question, and lots of people – including at Cato – will be debating what the answer should be.
President Obama has just signed the Every Student Succeeds Act, ending the era of No Child Left Behind. If nothing else, that big majorities of both parties in Congress felt the need to greatly ease federal force in elementary and secondary education – at least overt federal force – is a powerful testament to the breadth of the public backlash against federally driven standardization, testing, and “accountability.” That backlash may well have hit a tipping point thanks to the Common Core, through which the federal government attempted to get states not just to have state curriculum standards and tests, but national standards and tests. In other words, Washington began to influence the specifics of what children across the country would learn.
Is the ESSA much better than NCLB? No, and it could potentially end up taking very little power away from Washington even though the language surrounding it has been all about returning authority to states and districts. But that the rhetoric about the federal role has had to change so greatly is a very encouraging thing.
Of course, the work of getting Washington to obey the Constitution by getting out of education – and of fundamentally changing the education system to one based in freedom – is nowhere near complete. But at least things may be heading in the right direction.
The Every Student Succeeds Act, the intended successor to the No Child Left Behind Act, is better than the law it would replace. That is what many analysts are saying as they hail the legislation as a good step in the right direction. But let’s be honest: you couldn’t set a bar much lower than NCLB. And there are some potential problems that could make the ESSA just as dangerous as the law it would supplant.
To be fair, the ESSA is, overall, probably better than NCLB, and it may well have been the best compromise possible given political reality. Most notably, it eliminates NCLB’s uber-intrusive requirement that numerous groups of students make “adequate yearly progress” on state tests lest schools be subject to a cascade of punishments. It also tries to keep the Secretary of Education from requiring the use of specific curriculum standards such as the Common Core, though it should be noted that the Core was pushed not by the letter of NCLB, but funding from the 2009 “stimulus” and Obama administration NCLB waivers that were almost certainly illegal.
It is in responding to the power grabs of the current administration that the ESSA may fall, in practice, very short of actually eliminating executive – much less federal – control over the public schools. The bill would keep federal requirements that states have curriculum standards – indeed, “challenging” standards – and tests, and hold schools accountable for performance on them. Moreover, while the bill says the Secretary shall not “mandate, direct, control, coerce, or exercise any direction or supervision” over state standards, it also says that the Secretary must approve state accountability plans. In other words, as I’ve written before, it does not appear that the Secretary can state specifically what a plan must have, but the Ed Sec could potentially veto plans that he deems inadequate until – wink, wink – he gets what he wants.
The bill, it appears, tries to square the circle of demanding challenging standards without empowering the Secretary to define “challenging” by stating that “the Secretary shall not, through regulation or as a condition of approval of the State plan or revisions or amendments to the State plan, promulgate a definition of any term used in this part, or otherwise prescribe any specification for any such term,” if doing so is inconsistent with prohibitions against prescribing specific standard or accountability elements.
Now, I’m no expert in legislative language, but that strikes me as a flimsy – and confusing – defense against overreach, given both that the bill seems to demand that Washington decide if a state’s standards are challenging, and because the current administration, in taking an NLCB waiver provision and simply asserting that it could attach conditions to waivers, has shown how easily legislative language can be stretched.
The second dangerous ambiguity, as pointed out by the deft reporters at Education Week’s Politics K-12 blog, involves the elements in state accountability systems. Basically, there is potentially a huge problem determining what must be the breakdown of academic and non-academic factors in evaluating schools. What percentage of the evaluation should be standardized test scores, graduation rates, school climate, etc.? This problem appears to create especially fertile ground for continued regulatory micromanagement.
Of course, there are other major problems. For instance, the ESSA would enshrine in the flagship K-12 law a preschool program that had previously been created by appropriators. It is not germane to the Elementary and Secondary Education Act – of which NCLB and ESSA are just reauthorizations – nor is spending money on preschool logical given the dearth of empirical evidence such programs actually help. Speaking of non-germane, the bill also features an utter non sequitur: a “posthumous pardon” for boxer John “Jack” Johnson. The pardon may well be deserved, I don’t know, but it has nothing to do with elementary and secondary education. Then there is the bill’s sheer size: 1,061 pages of legislative lingo, a huge amount for anyone to digest. (Indeed, if I messed anything up here I blame that!) Yet the House, as of the most recent report I’ve seen, plans to vote on the bill in the next few days. And, of course, there’s this: the federal government has no constitutional authority to do almost any of this, and the federal government’s woeful education track record reveals just how wise the Framers were.
So is the ESSA better than No Child Left Behind? Probably. But that isn’t saying a whole lot.